Almost seven years ago, America's Cold War nemesis,
the Soviet Union, collapsed. Yet the Clinton Administration
continues to adhere to the terms of a treaty between the United
States and the now-defunct Soviet Union that are based on a policy
of mutual assured destruction (MAD). Despite the growing threat of
nuclear proliferation, this policy deliberately leaves America
vulnerable to missile attack. Why? Because the terms of the 1972
Anti-Ballistic Missile (ABM) Treaty prohibit the United States from
building an effective nationwide defense against ballistic
missiles.
The
obvious question many in Congress are asking is, "Should the United
States be bound by a treaty when its treaty partner, the Soviet
Union, has disappeared?" To answer this question, Senator Jesse
Helms (R-NC) and Representative Benjamin Gilman (R-NY) wrote to
President Bill Clinton on March 3, 1998, asking him to identify the
country or countries that today are ABM Treaty partners of the
United States in lieu of the former Soviet Union. In a letter dated
May 21, President Clinton responded that, even though an argument
can be made that Belarus, Kazakhstan, Russia, and Ukraine are ABM
Treaty partners of the United States, the Treaty remains in force
today on the basis that Russia alone is "clearly" party to the
Treaty. In other words, even though the Administration has sought
to multilateralize the Treaty, it is today a bilateral arrangement
with Russia alone.
Three Contradictions
Rather
than clear up the confusion over the ABM Treaty's status, the
President's response has added to it. His letter is riddled with
statements that contradict his previous assertions and cast serious
doubt on the claim that the ABM Treaty is legally binding. The
three most significant contradictions include:
Contradiction #1
In his letter to Helms and Gilman, the President states
that Russia is now a Treaty partner. But no such agreement has been
concluded with Russia. Furthermore, no negotiations to this effect
have taken place. President Clinton is merely claiming that such an
agreement exists as a matter of succession. But he cannot simply
manufacture a bilateral agreement with Russia. Nor can he argue
that Russia simply inherits the Soviet Union's treaty obligations
as a matter of succession, because Russia is unable to fulfill all
of the obligations the ABM Treaty imposed on the Soviet Union.
Contradiction #2
In a November 21, 1997, letter to Representative Gilman,
the President described the status of the ABM Treaty as
"unsettled." Now, in the new letter, he asserts that Russia is (and
has been) the legal Treaty partner. How can this be the case? How
can the President claim that the status of the Treaty is unsettled
and then, six months later, say that the status of the Treaty is
settled with Russia as partner? The record shows that Russia cannot
be the successor to the Soviet Union. The reason the President said
in November that the Treaty's status is unsettled is because that
is where the process stood in the Administration's efforts to
multilateralize the Treaty.
These efforts started when the
Administration announced at a November/December 1993 session of the
Standing Consultative Commission (SCC), the ABM Treaty's
implementing body, that it would seek a multilateral arrangement
for the ABM Treaty. Acting U.S. SCC Commissioner Stanley Riveles
publicly declared this commitment on June 21, 1994, before the
Seventh Multilateral Conference on Theater Missile Defense. It
continued when the Administration announced on several occasions
that any of the former Soviet states that wanted to participate in
the ABM Treaty regime has the legal right to do so. The process
resulted in an agreement with Belarus, Kazakhstan, Russia, and
Ukraine, signed in New York on September 26, 1997, to
multilateralize the Treaty. This agreement, however, remains
unratified. The President's assertion that the status is unsettled
is supported by the fact that the Department of State continues to
list the Soviet Union as the ABM Treaty partner of the United
States in its current version of Treaties in Force.
Contradiction #3
Furthermore, only last November, President Clinton argued
in his letter that making Russia the legal partner of the ABM
Treaty would require fundamental changes in the Treaty. Yet in his
new letter, he claims that Russia is a legal partner, despite the
fact that no such changes have been made or suggested. If the
President wants the Senate to recognize Russia as America's legal
partner in the ABM Treaty, he will have to change the Treaty's
provisions substantively. Otherwise, by his own admission, Russia
cannot be recognized as a bilateral partner of the United States in
the ABM Treaty.
The Role of the Senate
In his
November letter, President Clinton stated correctly that a
bilateral arrangement with Russia cannot be achieved without
substantive changes in the ABM Treaty, and that these changes would
require the Senate's consent. This last point is a crucial one for
the Senate. Article II, Section 2 of the U.S. Constitution requires
that modifications to an existing treaty be concluded as treaties
and then submitted to the Senate for its advice and consent. This,
in fact, is how a 1974 amendment to the ABM Treaty was handled. At
no time since the collapse of the Soviet Union, however, has any
agreement establishing Russia as the ABM Treaty partner of the
United States been submitted to the Senate. This would suggest
either that no such agreement exists (as, indeed, none has been
concluded), or that the President's actions are in violation of the
Constitution. Moreover, under international law, without an
identified treaty partner, the ABM Treaty would be deemed to have
lapsed, and therefore no longer would be binding on the United
States. Clearly, Senator Helms and Representative Gilman have
reason to ask the President to clarify this issue.
Conclusion
Senator Helms and Representative Gilman
would be justified in expressing outrage over the President's
response to their query. His assertions in his May 21 letter lack
credibility and raise constitutional and legal questions. If the
Administration's efforts deny the Senate its proper role in the
treaty-making process, the constitutional balance of power is
threatened. The President's attempts to evade his constitutional
responsibilities, mislead Congress on the status of the ABM Treaty,
and preserve the Treaty in this manner will have dire consequences.
Most important, they will allow millions of Americans to remain
vulnerable to missile attack.
-- Baker
Spring is Senior Policy Analyst in the Kathryn and Shelby
Cullom Davis International Studies Center at The Heritage
Foundation.